One of the side effects of the COVID-19 pandemic has been a precipitous increase in unilateral executive lawmaking across the globe.
While most countries directed their executive responses at the national level, the United States largely left the response to the governors of the states, with governors relying on their public health emergency powers.
In March of 2020, as it became clear that large-scale testing—which would have enabled containment of COVID-19—was impossible due to a confluence of technical, regulatory, and leadership failures, states shifted their strategy to mitigation, necessitating “lockdowns, social disruption, [and] intensive medical treatment.”
On April 1, 2020, forty-seven states issued executive orders closing nonessential businesses statewide.
By the end of April, all fifty governors had declared states of emergency.
Immediately after declaring states of emergency, governors began enacting mitigation policies at a rapid clip,
including closing schools,
restricting travel and elective medical procedures, imposing moratoriums on eviction and foreclosure proceedings,
and creating vote-by-mail options for elections.
These actions engendered a storm of controversy as the nation struggled with the sacrifices that were necessary to “flatten the curve.”
Executive decisions relating to the virus quickly became tinged with non-scientific considerations, with the science being “filtered through a very thick political lens.”
Widespread protests indicated the lack of consensus on the appropriate response, and the perceived illegitimacy of governors’ orders hampered their acceptance.
Particularly in states with Democratic governors and more stringent lockdowns, conservatives decried the executive orders as “authoritarian.”
Protesters, many of them maskless and some of them armed, entered statehouses, inducing some state senators to wear bulletproof vests.
These mitigation efforts waxed and waned as hotspots flared up and subsided across the country.
The controversy over the proper approach to controlling the spread of the virus only worsened as the pandemic dragged on. In a few states, legislatures initiated a full-blown showdown with the executive, either trying to impeach their governors
or attempting to curb the governors’ emergency powers.
Many of these controversies ended up in court, with plaintiffs alleging that the governors’ emergency actions exceeded the statutory authority granted to them by the state legislatures.
This Note argues, based on the COVID-19 controversy, that reposing emergency power for a chronic, long-duration emergency solely in the hands of the governor raises an issue of democratic illegitimacy. This democratic illegitimacy risks curtailing citizen obedience to public health regulations and invites legislative pushback on emergency powers generally.
In order to maintain robust and effective emergency power statutes in all states for similar emergencies in the future, states should revise their emergency power statutes to include more substantive legislative input, while retaining as much executive agility as possible.
This Note surveys the legal background of the governors’ emergency actions in the pandemic along with the ensuing legal controversy and suggests a revision to the statutes that would inject more democratic representation into executive emergency powers. Part I begins by laying out a conceptual framework for thinking about executive power in an emergency as a tradeoff between technocratic agility and democratic legitimacy, arguing for the vital importance of formal legal constraints over purely political ones. This Part then shows how the tension between technocratic agility and democratic legitimacy has motivated legislatures to balance executive power and legislative constraint in a variety of emergency power statutes, including, most importantly, the Model State Emergency Health Powers Act (MSEHPA). Part II explains how, notwithstanding this balance, the lack of substantive democratic input on the COVID-19 policy response and the public dissension this generates risks undermining public health policy and emergency powers generally. Finally, Part III offers a suggestion, inspired by the Congressional Review Act, for revising the legal approach to public health emergencies so that it can retain the agility of executive control but involve more representative democratic input.